A client once came to our Manhattan office, deeply concerned. Her late husband, a successful executive, had changed his will shortly before his death, leaving his entire estate to children from a prior marriage. She believed she was left with nothing. But New York law says otherwise. This is a common misunderstanding—that a will is the final, absolute word. It isn’t always.
Planning your estate is an act of stewardship. It’s about being deliberate with the legacy you will one day leave behind. This process, however, operates within a framework of legal rights and obligations. Understanding these core rights is the first step toward creating an effective plan. Here are five that I believe every New Yorker should know.
1. The Right of a Surviving Spouse
In the situation I described, the widow’s most powerful protection was her “right of election.” Under New York’s Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, a surviving spouse has the right to claim a portion of their deceased spouse’s estate, regardless of what the will says. The law prevents a person from completely disinheriting their spouse.
The elective share is the greater of $50,000 or one-third of the net estate. This applies not just to assets passed through the will, but also to certain “testamentary substitutes” like joint bank accounts or assets in a revocable trust. This is a foundational right in our state that prevents a spouse from being left destitute. It is a powerful legal backstop, but one that requires timely and proper legal action to enforce.
2. The Right to Choose Your Heirs
Outside of the spousal right of election, you have broad freedom to decide who inherits your property. You can leave your assets to family, friends, or charitable organizations in any proportion you see fit. This is the core principle of testamentary freedom.
A frequent question I hear is, “Can I disinherit my child?” In New York, the answer is yes. Unlike a spouse, a child has no statutory right to inherit from a parent’s estate. If you intend to do this, your will must state it with absolute, unambiguous clarity. A court will not infer your intent. The will must state explicitly that you are intentionally making no provision for that child. Without this clarity, a disinherited child might successfully challenge the will, arguing they were omitted by mistake.
3. The Right to Appoint a Guardian for Your Children
For parents of minor children, this is arguably the most critical right—and responsibility—in an estate plan. Through your will, you can nominate a guardian to care for your children if both parents pass away. This is not merely a suggestion; it is the single most important piece of evidence the Surrogate’s Court will consider when making a final appointment.
Without a nominated guardian in a will, the court must make the decision without your input. This can lead to family disputes and a lengthy, stressful process for everyone involved, especially the children. Naming a guardian is your right to ensure the person you trust most becomes the custodian of your children’s future. It is a profound act of parental care.
4. The Right to Protect Your Legacy with a Trust
A will is a foundational document, but it is not the only tool. You also have the right to create a trust to manage your assets during your life and after your death. A trust gives you a far greater degree of control over your legacy. It allows you to set specific conditions for how and when your heirs receive their inheritance.
This is particularly important for parents who worry about a young adult inheriting a large sum of money all at once. A trust allows you to name a trustee—a fiduciary with a legal duty to act in the beneficiary’s best interest—to manage the funds. You can instruct the trustee to distribute assets for specific purposes like education or a down payment on a home, or to release funds in stages as the beneficiary matures. This is how you build a prudent, generational plan.
5. The Right to Contest an Improper Will
Finally, certain individuals have the right to challenge a will they believe is invalid. This right is not unlimited. To bring a will contest, you must have “standing,” meaning you are a person who would be financially affected if the will were proven invalid. Typically, this means heirs who would have inherited if there were no will, or beneficiaries from a previous will.
The grounds for a challenge are also specific: lack of testamentary capacity, undue influence, fraud, or improper execution. These proceedings are governed by the Surrogate’s Court Procedure Act and can be difficult. For instance, many wills contain an “in terrorem” clause—or no-contest clause—which states that any beneficiary who unsuccessfully challenges the will forfeits their inheritance. A potential challenge requires extreme care and professional guidance.
These rights form the legal bedrock of your estate plan. The law provides the framework, but the stewardship is yours. The first step is often to take stock of where you stand. I invite you to schedule a confidential review of your current will, trust, or overall estate plan with our firm, so we can assess how these fundamental rights apply to your family’s circumstances.
